34 FLRA NO. 25
U.S. DEPARTMENT OF DEFENSE
DEFENSE INDUSTRIAL PLANT EQUIPMENT CENTER
MEMPHIS, TENNESSEE
(Activity)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Petitioner)
4-DA-80001
ORDER GRANTING APPLICATION FOR REVIEW AND REMANDING CASE
December 29, 1989
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an application for
review filed by the National Federation of Federal Employees
(NFFE) under section 2422.17(a) of the Authority's Rules and
Regulations. NFFE seeks review of the Regional Director's
Decision and Order on Petition for Certification for Dues
Allotment.
In her decision, the Regional Director addressed matters
raised by an amended petition for certification for dues
allotment filed by the American Federation of Government
Employees, AFL - CIO (AFGE) under section 7115(c) of the Federal
Service Labor - Management Relations Statute (the Statute) and
section 2422.2(d) of the Authority's Rules and Regulations. The
Regional Director's decision affected NFFE's interests as to an
existing unit for which NFFE was certified for dues allotment.
In its application for review, NFFE alleges that it was
improperly denied the opportunity to intervene and participate in
the hearing on the amended petition. NFFE requests the
Authority to set aside the Regional Director's decision and order
and grant NFFE the opportunity to participate in this matter as a
party/intervenor. Neither AFGE nor the Activity filed an
opposition to the application.
Inasmuch as the Authority had two vacancies when this
application for review was received, Acting Chairman McKee issued
an Interim Order on July 24, 1989, directing that consideration
of the application be deferred until further notice. This interim
order preserved the parties' rights under the Statute to
Authority consideration of the Regional Director's decision.
The Authority now considers this application for review. For
the reasons set forth below, we grant the application and remand
the case to the Regional Director to take further appropriate
action as directed.
II. Background and Regional Director's Decision
On August 12, 1988, AFGE filed a petition for certification
for dues allotment in a unit which included employees of the
Defense Industrial Plant Equipment Center (DIPEC) who are
stationed at DIPEC facilities in Stockton, California; Columbus,
Ohio; and Mechanicsburg, Pennsylvania. The petition specifically
excluded employees at the DIPEC facilities in Memphis, Tennessee.
At the time of the original petition, NFFE Local 259 had an
existing dues allotment agreement with DIPEC for employees in
Memphis.
According to NFFE, it first learned of AFGE's petition in
December 1988 when it received notification from the Authority's
Regional Office that a hearing on the petition was scheduled for
January 12, 1989. NFFE states that in conversations with a
representative of the Authority's Regional Office, it confirmed
that AFGE's petition did not include the Memphis employees and
that, consequently, NFFE had no standing as an intervenor in the
case.
After the hearing began on January 12, 1989, the hearing
officer permitted AFGE to amend its petition to include the
Memphis employees so that the proposed unit for dues allotment
purposes became a Command-wide unit. There was no NFFE
representative at the hearing. The hearing proceeded to
completion. According to NFFE, neither NFFE nor the Memphis
employees were notified of the amended petition.
On March 29, 1989, the Regional Director issued her
decision and order. The Regional Director noted that a hearing
officer had held a hearing and that NFFE "was served with notice
of the hearing, but did not appear." Decision and Order at 1 n.*.
The Regional Director found that: (1) the Command-wide unit
sought by AFGE's amended petition--DIPEC employees including
those in Memphis--is an appropriate unit within the meaning of
section 7112 of the Statute; and (2) AFGE's petition for
certification for dues allotment was a valid one. The Regional
Director also found that the unit for which NFFE Local 259 was
certified for dues allotment--DIPEC employees who work in
Memphis--is no longer appropriate.
III. NFFE's Application for Review
NFFE contends that it was improperly denied the opportunity
to intervene and participate in this matter. NFFE asserts that it
should be considered a "party" under section 2422.17(a) of our
Regulations for purposes of filing an application for review
because the Regional Director found that an established NFFE unit
is no longer appropriate.
NFFE contends that there were "numerous violations (of the
Authority's Regulations) which occurred in association with the
instant case." Application for Review at 4. According to NFFE,
the following sections of the Regulations were violated in the
manner stated:
(1) section 2422.8(c), when the Regional Office failed to
include a copy of the original petition along with the hearing
notice served on NFFE in December 1988;
(2) section 2422.2(e)(3), when NFFE was not served with
notice of the amended petition even though it became clear at the
point in the hearing that NFFE was an interested party;
(3) section 2422.5(f), when NFFE was not offered an
opportunity to participate as an intervenor in the proceedings
once the scope of the petitioned-for unit expanded as a result of
the amendment to the petition; and
(4) section 2422.4, when the Memphis employees were not
notified of the amended petition affecting them.
NFFE notes that it was only after the hearing began and the
petition was amended that NFFE could have become an
intervenor, and contends that at that point NFFE should have been
informed of the change in the petitioned-for unit so that it
could have requested intervenor status. NFFE asserts that it had
no standing to intervene so long as the petition did not include
the Memphis employees and that it cannot be required to have
intervened on the ground that the petition might be amended at
the hearing.
NFFE requests that in light of these regulatory violations,
the Authority: (1) set aside the decision of the Regional
Director; and (2) direct a new hearing to be held, to be preceded
by a 10-day posting of notice to DIPEC employees in Memphis and
proper notification to NFFE.
IV. Discussion
We find that NFFE was improperly denied an opportunity to
intervene and participate in this matter in violation of the
Authority's Regulations. Accordingly, we: (1) accept NFFE as a
"party" for purposes of filing this application under section
2422.17(a) of our Regulations; and (2) grant the application for
review on the ground that "the conduct of the hearing held or any
ruling made in connection with the proceeding has resulted in
prejudicial error(.)" 5 C.F.R. 2422.17(c)(3). We set aside the
Regional Director's decision and order and remand the case to the
Regional Director for appropriate action.
Our Regulations provide that when a petition for
determination of eligibility for dues allotment is filed the
petitioner shall serve a copy of the petition "on all known
interested parties(.)" Section 2422.2(e)(3). Further, after a
petition is filed and upon request of the Regional Director, the
activity shall post copies of a notice to all employees affected
by the petition. Section 2422.4(a). These provisions are intended
to give interested parties and employees affected by the petition
notice of the nature of the petition so that they may take
appropriate action to protect their interests in the case.
In this case, there was no requirement that AFGE serve a
copy of the original petition on NFFE because the original
petition specifically excluded the Memphis employees. For the
same reason, there was no requirement for the Regional Director
to ask DIPEC to post copies of the notice at its Memphis
facilities at that point in the proceedings of the case. However,
when the petition was amended at the hearing to include the
Memphis employees, the Memphis employees' interests and NFFE's
interests were affected. At that time, the Memphis
employees were entitled to a posting of notice of the amended
petition and NFFE was entitled to notice of the amended petition
and to an opportunity to intervene to protect its interests.
If the original petition had included the Memphis employees,
AFGE would have been required to serve NFFE, as a "known
interested party(y)" under section 2422.2(e)(3) of our
Regulations, with a copy of the petition. Similarly, if before
the hearing the Regional Director had approved an amendment to
the petition that changed the scope of the unit described in the
original petition, a new posting of a notice to all employees
under section 2422.4 of our Regulations would have been in order.
Further, if as a result of the amendment NFFE became a known
interested party, NFFE would have been entitled to notice and an
opportunity to intervene to protect its rights. We believe that
these regulatory provisions apply equally where, as the result of
granting such an amendment during the course of a hearing, an
entity or person becomes a known interested party.
The amen